A few days earlier, ABC, TEXO and a coalition of stakeholders had filed suit against the anti-retaliation provisions of OSHA’s final rule. The suit immediately challenges provisions that will limit post-accident drug testing and safety programs that contribute to construction jobsite safety. In addition, on July 12, ABC filed an emergency motion for preliminary injunction seeking to delay those provisions from implementation. ABC will continue to update members on any developments regarding the legal challenge.

Overview of the Final Rule
On May 12, OSHA issued the final rule on electronic injury reporting and anti-retaliation, which will make the submission of the injury and illness forms mandatory and exclusively electronic for most employers. And for the first time, OSHA also plans to make this information publically available on the Internet through a new searchable database and use the data for enforcement purposes. OSHA currently only collects this information if a facility is inspected, or if a workplace is part of the OSHA Data Initiative.

Further, some forms of post-accident drug testing and accident-free incentive programs will be deemed to be unlawfully retaliatory.

The final rule will force employers to disclose sensitive information to the public that can easily be manipulated and misused for reasons wholly unrelated to safety. Further, anti-retaliation provisions will force many employers to change their current safety programs in ways that will make workplaces less safe by discouraging drug testing and safety incentive programs.

The anti-retaliation provisions will be enforced beginning Nov. 1, 2016 and the reporting requirements from the final rule become effective Jan. 1, 2017.